Civil commitment leaves Hennepin County offenders languishing

Eugene Arthur Gates lost three months of his life to a pack of cigarettes.

On an October evening in 2010, Gates walked into a convenience store in Bloomington. He wanted the smokes, but he didn't have any money, and when the attendant explained why this was a problem, Gates lost his temper.

"Don't you know who I am?" he demanded. "I'm Bill Gates!"

Eugene, who has nothing in common with the Microsoft billionaire other than a last name, spat a mouthful of hot coffee at the attendant and ran out the door.

Police found him yelling at another employee outside the shop, holding the cigarettes and a stash of 5-Hour Energy drinks he had grabbed off the counter. The officers told Gates that he could face charges, but Gates had no intention of going quietly. After being handcuffed, he spat at an officer and a paramedic. He was eventually charged with fourth-degree assault and brought to the Hennepin County Public Safety Facility in downtown Minneapolis.

Gates suffers from a severe mental illness. The diagnosis is Schizoaffective Disorder, a condition that, without treatment, manifests in delusions, paranoia, and violence, according to his doctors. In addition to Bill Gates, he claims to be the owner of the Kansas City-based Gates Bar B.Q. franchise, and tells judges and guards of plans to open a restaurant in the Mall of America.

In short, there was no way that Gates was going to be found competent to stand trial for the minor assault charge.

If the civil commitment process had worked properly, someone might have noticed this right away, and scheduled a competency evaluation that would have eventually kicked his case to the mental health court, where he could get treatment.

But no one did notice—at least no one in a position to do anything about it—and because Gates couldn't make bail, he spent the meantime in a jail cell. By the time Gates was transferred to a hospital for treatment, more than 90 days had passed.

This is not how the civil commitment system is designed to work. In fact, after Gates sat in jail for months, his condition might have grown considerably worse by the time he finally received treatment, says Al Poncin, his defense attorney in mental health court.

"Psychiatric treatment delayed is very bad because you never quite get back to where you were," Poncin explains. "There is some kind of long-lasting mental health ramification."

But Gates's case is far from isolated. In Hennepin County, a combination of strapped resources, bureaucracy, and an increase in criminals referred to the mental health commitment court has made it the norm for offenders to sit in jail for months on end while they wait for the system to start working.

"It is a real issue," says Mike Freeman, Hennepin County attorney. "I think society—and primarily the state Legislature—has ignored the real need for mental health treatment and options for beds. We simply have to have these things. And the Legislature has known about it for a long time, but they just don't want to pay for it."

The problem touches everyone in the system. The longer mentally ill offenders languish in jail, the more guards are tasked with acting as de facto nurses, which can lead to attacks and more criminal charges.

"The more mentally ill people that find their way into the system that aren't treated promptly, the more difficult it's going to be for the jail," says Judge Jay Quam, who presides over the mental health commitment court. "The more difficult it's going to be for everyone—especially the people who are mentally ill."

As recently as 50 years ago, Minnesota's mental health system resembled something like an Authoritarian regime. In the age predating antipsychotic medications, the focus was on institutionalization, and patients were afforded little or no civil liberties. Experts in the system today still tell horror stories of men committing their troubled wives or children just to get rid of them.

Once committed, the patients would be filed into the Anoka State Hospital like cattle.

"Back in the '60s, they had, I think, 1,600 patients up there," says Donald Betzold, a former state senator who helped reform Minnesota's civil commitment laws. "Basically, you got committed, they sent you up there, and you stayed forever. People weren't getting out."

Over the next two decades, philosophies toward the mentally ill evolved. The country moved away from long-term institutionalization, and focused on treatment plans that moved patients back into their communities.

In 1982, Hennepin County lost a precedent-setting Supreme Court case to a patient named M.D. Vickerman, who alleged his due process rights were violated by the court. After this decision came the Hennepin County Civil Commitment Defense Project, a team of experienced defense attorneys paid by the county and selected by the bar association to represent mentally ill people who can't afford counsel.

Throughout the 1980s, Minnesota's civil commitment system continued to see landmark reform. The Legislature passed the Minnesota Commitment Act, which established a platform of civil rights for the mentally ill.

The emerging focus on civil liberties was a monumental step out of the Dark Ages of psychiatry, but it also created an innately more complicated system.

"Now, in Minnesota, you have a system that I think is very sensitive to the rights of individuals," says Dr. Lawrence Panciera, chief clinical psychologist for the Fourth Judicial District Court. "As good as that is—and I'm supportive of it—as soon as you put due process in the system, it slows things down."

On the heels of losing another Supreme Court case, the Legislature amended the Civil Commitment Act to include the "Jarvis petition." Named after Homer Jarvis, a Minnesota man who was committed to the St. Peter security hospital after killing his sister, the act established that a patient must be civilly committed before doctors can force neuroleptic medications.

The focus on outpatient care also posed problems, particularly when treating the most severely mentally ill. New patients came in quicker than others were leaving, and there were not enough beds to accommodate everyone.

"I've been in the system since 1989; it's been an issue since 1989," says Dr. Alan Radke, chief medical officer for the State Operated Services. "We're chronically short of beds when we're talking about secure level of care. It's a back door problem, as well as a front door problem."

Currently, patients typically enter the civil commitment process in two ways: by being brought to the hospital for an evaluation, or through committing a crime.

The former is usually a speedy process; someone brought in for an evaluation by a concerned family members might be committed within days or a couple of weeks.

Going the jail route is another story. Once arrested, mentally ill offenders simply wait for someone to suspect they aren't competent. Once that happens, a judge will file what is known as a "Rule 20 petition," which refers the offender to a court-appointed psychiatrist to be evaluated for competency.

If found incompetent, the offender is transferred to the mental health court, where a judge will determine whether the person can be committed. After that, the offender becomes the state's problem. The Department of Human Services is tasked with transferring the offender to the appropriate hospital for treatment to return the patient to competency.

"The thing to do is to make sure that there's enough space at every point in the process, so it doesn't get clogged up," says Joel Fisher, an attorney with the defense project. "It seems to be that there are clogs almost at every place."

In Hennepin County, the civil commitment system can come to a screeching halt as soon as the offender is arrested.

The defense attorney, in most cases a court-appointed public defender, is usually the first member of the court system to notice if someone is mentally ill, and possibly unfit for trial. But today, public defenders are grossly overburdened with case loads. Recent years of budget cuts have made it common for public defenders in Hennepin County to take on twice the suggested work load, meaning they spend less face time with each client. And if competency isn't brought to a judge's attention, the Rule 20 petition is likely never filed.

"We can't do anything until we get the Rule 20 petition," says Carla Hagen, senior assistant Hennepin County attorney. "They're really not even on our radar, because we're not trolling for more clients."

But even more of a burden on the system has been a dramatic increase in mental health referrals. In 2001, there were a total of 52 Rule 20 petitions filed in Hennepin County in which the defendant was found incompetent in the criminal court and transferred to mental health commitment court, according to data provided by the court. In 2011, there were 92, an increase of 77 percent.

"I think it's true that the criminal system is somewhat becoming a funnel for people that are mentally ill who don't wind up getting services through the usual route," says Carolyn Peterson, another assistant Hennepin County attorney who handles civil commitment cases.

No one is absolutely sure what caused the increase. The working theory is that we're seeing a ripple effect from the economy. As budgets have tightened, community resources for the mentally ill have been cut. With a rise in unemployment, many have lost health insurance benefits, and can't afford treatment.

"We see some folks who cycle through because they fall through the cracks," says Peterson. "They may have been receiving treatment. They lose their insurance or lose their housing, and they have a history of criminal behavior in addition to their mental illness problem, and they wind up in our system."

Whatever the cause, it is the Hennepin County taxpayer who picks up the bill. On average, it costs the county about $120 a day to house an inmate. Accounting for the costs of security, mental health nurses, and other additional services, this price can be significantly higher for mentally ill inmates. The jail wouldn't provide figures for this story, but according to a 2005 article published in the Journal of Law and Criminology, "Prisons of the Mind," the cost of incarcerating a mentally ill inmate can be up to 75 percent higher than the non-mentally ill. By this math, someone like Eugene Gates could be costing Hennepin County more than $18,000 just sitting in jail waiting for the system to find him.

It didn't take much to set Yusef Warsame off.

Warsame approached his 14-year-old brother, Ayoub, who was sitting on the couch at their parents' house in Robbinsdale last summer. Warsame wanted his brother to clean the dishes. When Ayoub refused, Warsame slapped him in the face and tackled him to the ground. He eventually wrestled his brother in a guillotine chokehold.

Just before things went black, Ayoub managed to slip away and call 911.

Warsame was already a frequent flyer in the mental health court. In 2007, he threatened to shank a University of Minnesota student near the West Bank campus. "I'm going to fucking kill you," he told the young man. Police arrested Warsame and found two knives in his back pocket. Warsame was diagnosed with severe bipolar disorder and committed to a state hospital for intensive psychiatric care.

But because of the way the system is set up, offenders who have already been committed don't raise any sort of red flag with the mental health court, so no one knew he had been arrested again. Warsame was simply charged with assault and dumped in jail with everyone else.

"There should be a way of red-flagging somebody who's already been in the mental health system," says Mark Gray, Warsame's attorney. "They just don't cross reference things."

Warsame's condition spiraled downward in jail. He became convinced that the guards were conspiring against him, and filed grievances on a semi-daily basis. He was what the guards colloquially refer to as a "shit spreader," which is pretty much just what it sounds like. Warsame was eventually charged with fourth-degree assault for throwing his feces at the guards.

"I think if they would have caught the case a lot sooner, he would have been on medication, possibly, and that crime might not have happened," says Gray.

For mentally ill people like Warsame, jail can be the worst possible environment. If identified as mentally ill by the jail staff, an inmate is brought up to a maximum security wing on the third floor of the facility. Those in mild condition are allowed to interact with each other in a common room for part of the day, but the more disruptive ones are locked in solitary cells for 23 hours a day.

To its credit, the Hennepin County jail is progressive when it comes to mentally ill inmates, at least relative to other facilities in the state. The jailers are trained in how to deal with the mentally ill, and the medical staff can offer inmates their most recently prescribed medication, providing it's not a narcotic. Patients can also request to see a nurse or psychiatrist from the Hennepin County Medical Center.

But the jail is no substitute for a hospital, and security is the primary concern. Without civil commitment, treatment options are limited, and completely voluntary for the inmates. As a result, many go without medication, mentally decompensating in their cells while waiting to be committed.

"Decompensation can happen in a matter of days or weeks or a few months," says Philip Krasowski, a nurse at Hennepin County Medical Center who works with the mental health court. "The longer you're off treatment, the sicker you get, and the harder it is to bring you back."

With such long stays in jail awaiting commitment, inmates frequently leave in a far worse condition than when they arrived, says Doug McGuire, attorney coordinator with the mental health defense project.

"It's not only a deprivation of liberty and failure to treat, but also you have people who are ending up worse off than when this whole thing started," says McGuire. "And that's very unfortunate."

The issue also puts jailers in an unfair position, interacting with mentally ill inmates who often resist them. In 2010, a young man named Antwain Mitchell was arrested for a probation violation. Mitchell sat in jail for months, all the time suffering from paranoid schizophrenia that brought on grossly disturbed hallucinations. In December, Mitchell punched a guard in the face. Two months later, he took a bite out of a guard who was trying to attach a spit hood to him.

When Mitchell was finally committed, a doctor determined that he had "a proclivity towards violence and is apt to use violence particularly when he is experiencing symptomatology of his mental illness." Mitchell was ultimately determined to be not just mentally ill, but also dangerous.

The added "dangerous" diagnosis makes no small difference. On average, a patient diagnosed as simply mentally ill is committed to a six-month treatment program, which is frequently completed through outpatient care. A mentally ill and dangerous patient generally receives an indeterminate sentence, often three to seven years in a maximum security hospital.

"That actually happens much more often than I'd like to see it," says Judge Quam. "It makes perfect sense. They're mentally ill, they're very disruptive, they're in a relatively antagonist environment. If you haven't committed an overt act, it sure can happen in jail."

Prior to December 2009, Quam had virtually no familiarity with mental health court. As an attorney, Quam had worked at the same private firm for 18 years, practicing a range of civil litigation and criminal defense law. Gov. Tim Pawlenty appointed him to the bench in 2006, when Quam was only 44.

In his appointment, Pawlenty remarked upon Quam's career as a successful litigator, with an impressive portfolio of volunteer work for low-income clients. "He will bring an incredible amount of intellect, energy, and compassion to the position," said Pawlenty. Fellow lawyers also comment on Quam's unusually personable attitude toward offenders in his courtroom—he has the "head and heart" for the job, says one attorney—but Quam is no pushover. He's the judge who boldly threw fallen-auto king Denny Hecker in jail over unpaid alimony to "motivate him."

After being assigned to civil commitment court, Quam quickly noticed the lag time for cases to reach his court. Many of the defendants were in desperate need of help, which Quam began to suspect was exacerbated by the long periods of time spent in jail waiting to move through the system.

"It's very apparent, when someone is symptomatic like that, that they need mental treatment," says Quam. "And these folks needed it and hadn't been getting it."

Quam was particularly galled with the burden this was putting on the jailers and the taxpayers.

"It's kind of everyone's fault," says Quam. "I think everyone would agree that it's bad to have people languishing in jail when they need mental health treatment. But the problem is, no one's really accountable for that."

Quam believes there is a better way. For starters, he thinks the two separate psychiatric evaluations could be condensed into one. This way, if the offender fits the criteria for commitment, the process would kick in right away. He also thinks jailers could be encouraged to file competency petitions, as they are the ones who see these inmates the most.

"I think you can tweak their personal responsibility to most effectively move the process along," says Quam. "Right now, it's kind of inefficient."

Others in the system have come to an almost identical conclusion. McGuire, who has been defending civil commitment cases since the '80s, has long believed that the system is too redundant.

"Right now, it's a sequential process," says McGuire. "They have to go through the criminal process until they get to a point where the criminal process says, 'We can't deal with you anymore'.... You end up with an individual that—if they end up refusing medications, which they can do very easily if they're not under commitment—they end up coming to the mental health court so psychiatrically decompensated that it takes a long time for them to get back."

But even if everyone agrees the system is broken, changing it is another matter. Quam has spent the last few months meeting with judges, trying to determine the logistics of instituting reform. Since it's never been done, Quam is venturing into uncharted territory.

And as a judge, his power is limited. If the system is truly to be overhauled, it will have to be done at the State Capitol.

"It could be addressed legislatively, no doubt about that," says Quam. "Whether anyone has the appetite to change or draft legislation to address the problem, I don't know."

In December 2010, Quam received a troubling letter from Al Poncin, an attorney on the mental health court's defense project. Eugene Gates had finally been committed that month. But several weeks later, Gates still hadn't been transferred to a hospital for treatment—he remained in jail.

Another of Poncin's clients, Ronald Brewer, was in a similar situation. In July 2010, Brewer was arrested outside the Country Bar, a karaoke dive in Uptown. The cops found a wadded-up napkin filled with 49 prescription Oxycodone pills in his pocket. The problem was that the prescription belonged to someone back at the bar, who told police Brewer had stolen the pills. Suffering from major depressive disorder, Brewer had threatened suicide from his jail cell, but it took months to commit him. And since his commitment, he had sat in jail for another month awaiting transfer.

By now, he had been wasting away in jail for more than five months for the low-level drug charge.

"If you've got a sick person and he's sitting in jail, the fact that he hasn't been committed doesn't make him any less sick," says Poncin. "If he's so sick he needs involuntary treatment, he probably needed that on July 1."

Not only does this violate the purpose of civil commitment, but it could also be illegal. The Minnesota civil commitment statute states that once someone is committed, the Department of Human Services is obligated to provide "proper care and treatment." The statute explicitly states that this means the patient can't be "confined in a jail or correctional institution."

Quam penned a notice to Cal Ludemen, then commissioner of Human Services, demanding the Department of Human Services come to his court and show cause for why Gates and Brewer continued to languish in jail.

"In no way can it be argued that jail or prison is an effective way to help a mentally ill person get better," wrote Quam. "In fact, the opposite is true."

On January 14, 2011, Quam held what would be the first of three hearings designed to make the Department of Human Services answer for why it was taking so long to transfer patients out of the jail.

"Well, I guess one of the most poignant questions is: How did this happen in the first place?" Quam asked during the hearing. "I take it...you agree that it's not appropriate to leave someone like Mr. Brewer or Mr. Gates or others in a jail for an extended period of time?"

"Your honor, we are in complete agreement with that," replied Mike Tessneer, then CEO of the Department of Human Services.

Tessneer explained that the system is simply overwhelmed. Patients are being committed to hospitals from all over the state faster than others are leaving. When there is a sudden influx of patients, there just aren't enough beds for everyone. "The flow looks like it works, but there will be times when it does not."

Quam later called Lt. Tom Sizer, a Hennepin County sheriff's deputy who works at the jail, to testify about the problems of mentally ill inmates.

"As far as psychiatric care, mental health care for the persons confined within the jail, I think we're doing a pretty dang good job compared to statewide," testified Sizer.

But even with all the resources and training of the facility, the jailers can only do so much, Sizer continued. The care the jail can offer is limited, especially for people who are mentally ill and dangerous.

"One of the biggest frustrations for the jail is the Rule 20 process itself," explained Sizer. "By nature of just being a jail, we are essentially a warehouse for the court."

Tessneer ultimately proposed a triage plan that would move mentally ill patients out of the jail within seven days of commitment. But nine months after the most recent hearing, questions persist about whether the Department of Human Services is keeping up its end of the bargain. Just last month, for example, a man named Abdiyare Abi sat in jail for twice that time waiting to be transferred to a hospital.

The problem continues to be a simple lack of resources, says Tessneer, now project manager in the State Operated Services compliance office.

"We have a finite number of beds, so we try to maximize the number of beds and efficiency and use of those beds," he says.

Today, people like Abi are the exception rather than the rule, says Maureen O'Connell, assistant commissioner for the Department of Human Services for chemical and mental health. O'Connell says her office is working on a system that will move patients through inpatient treatment and back into their communities faster, freeing up more hospital beds.

"Anticipate over the next year that we will be working very hard on this issue across the state," she says.

But the damage may already be done. In Minnesota, we've slipped further and further down a road where jails and prisons are replacing mental health facilities. It may be too late to go back now, says Dr. Lawrence Pancieria.

"We've gone down that road big time," says Panciera. "I don't know if you'll be able to reverse that.

"We've set up a system where a lot of mentally ill people are being managed in the jail system. And if you were to do it differently, it would be very, very expensive. I just don't see that happening in the near future."